The collapse of Transitional Justice

The acquittal of two Croatian generals by the
International Criminal Tribunal for the Former Yugoslavia undermines the very
idea that international tribunals can contribute to peace and reconciliation in
post-conflict states.

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The acquittal of General Ante Gotovina and General Mladen
Markac by the Appeals Chamber of the International Criminal Tribunal for the
Former Yugoslavia (ICTY) on 16 November 2012 was a surprise and a shock to
many. These two men had previously been convicted by the ICTY’s Trial Chamber
for crimes against humanity and war crimes perpetrated by Croatian forces in
the summer of 1995. They directed Operation Storm, which allowed the Croatian
army to overtake territories controlled by Serb rebels and to expel over two
hundred thousand Serb civilians out of Croatia. The ICTY’s Trial Chamber
established that this military operation involved indiscriminate shelling and killings
and constituted a deliberate attempt by the Croatian leadership to permanently
remove the Serbian population from the Krajina region. As a result, General
Gotovina and General Markac were sentenced to 24 and 18 years respectively in
2011.

The Appeals Chamber decision to overturn this
verdict and free the generals produced strong reactions and mixed feelings in
Serbia and Croatia. With the exception of a few dissenting voices, this
decision was celebrated en masse in Croatia where the two generals are
identified as symbols of a just war fought against the Serbian aggressors. The
new verdict vindicates the view that Croatia was a victim, not a perpetrator,
and that the military actions carried out by the Croatian army were fully
legitimate. On the other hand, the Appeals Chamber verdict exacerbated the
grief of the Serbian victims and reinforced a deep sense of injustice and
victimization in Serbia. The fact that the almost entire Serbian community from
Croatia was wiped out under the eyes of the international community has been a
cause of deep resentment and frustration among the Serbian public. The
Tribunal’s sanctioning of this action as legitimate can only bolster such
feelings.

Instead of restoring the dignity of the victims and
opening the way for reconciliation, the Tribunal has thus exacerbated the
tensions and entrenched the divisions over the interpretation of the wars of
Yugoslav succession. Almost twenty years after its creation, the ICTY has
proved incapable of fulfilling its mission of contributing to the restoration
and maintenance of peace in the former Yugoslavia. This observation not only threatens
the legacy of the ICTY, it questions one of the basic premises of transitional
justice: that (international) war crimes trials can promote peace and
reconciliation in post-conflict states.

An ambitious project

The belief that international tribunals can
contribute to peace and reconciliation in post-conflict states provided a
strong rationale for the establishment of the ICTY in 1993 by the UN Security Council Resolution 827.
Paradoxically, this idea was championed
by Theodor Meron, the Presiding Judge of the Appeals Chamber that acquitted
Gotovina and Markac. Meron advocated the creation of a tribunal for the former
Yugoslavia on the basis that war crimes prosecutions would deter future
offenders and "educate the general public not
to accept egregious violations of human rights and humanitarian norms". He
also endorsed the view, shared by many human rights activists at the time, that
war crimes trials would open the way for reconciliation by establishing
individual responsibility and thus removing blame from entire ethnic groups.

This belief in the capacity of international
justice to promote peace and reconciliation in the former Yugoslavia was
premised upon a specific understanding of the Yugoslav wars, attributing responsibility
for the conflict and war crimes on local political elites rather than
historical legacies. This interpretation constituted a radical break from the
‘ancient hatred’ thesis which informed early Western approaches to the
conflict. The proponents of the ICTY strongly believed that the Yugoslav wars
were engineered by nationalist politicians who manipulated their constituents
in order to cling on to power. As a result, the supporters of the Tribunal
considered that the ICTY ought to individualize responsibility for war crimes
and build an authoritative historical narrative of the conflict in order to
allow for reconciliation. Payam Akhavan, the former advisor to the Prosecutor’s
Office of the ICTY argued that the ICTY should seek to construct an overall
picture of the conflict that provides optimal cathartic and reconciliatory
potential "by telling the truth about the underlying
causes and consequences of the Yugoslav tragedy".

The ICTY’s aim of promoting reconciliation was not
mere rhetoric. The Tribunal was established under Chapter VII of the UN
convention as a mandatory enforcement mechanism for the restoration and
maintenance of international peace and security. The cases brought before the
ICTY essentially focused on high-ranking officials, that is, the political and
military leaders of the different parties involved in the conflict. The
findings of the Tribunal were disseminated throughout the former Yugoslavia by
a network of civil society organisations devoted to addressing the legacy of
war crimes. The transitional justice project thus took root in the former
Yugoslavia.

The ICTY’s legitimacy deficit

In spite of its good intentions, the ICTY failed to
gain public support among its target audiences. This is especially true in Serbia,
where public opinion polls show that support for the Tribunal varied between
8 and 13 per cent over the past decade. But hostility towards the ICTY has been
a common feature throughout the former Yugoslavia. The ICTY has not been very
popular in Croatia and Bosnia; Public opinion polls carried out in 2010 show that 71 per cent of Croatian respondents and
56 per cent of Bosnian respondents had a negative view on the work of the
Tribunal.

To a certain extent, this state of affairs is
imputable to the local political elites who either opposed the ICTY or cooperated
with it reluctantly. During the nineties, the Milosevic regime demonized the
Tribunal as an anti-Serb conspiracy and a tool of Western imperialism, while President
Franjo Tudjman denounced the ICTY’s attempts to prosecute Croatian war crimes
suspects as an attack on the legitimacy of Croatia’s struggle for independence.
After 2000, with the death of Tudjman and the overthrow of Milosevic, the local
political context became much more favourable to the Tribunal. The new Serbian
and Croatian authorities were in principle supportive of the ICTY’s mission but
they faced tremendous opposition to the transfer of war crimes suspects to The
Hague, resulting in protracted and sporadic cooperation with the ICTY by both
countries. Eventually, the policies of conditionality deployed by the US and,
especially, the EU led the successive Croatian and Serbian governments to hand
over all the indicted war criminals. But this policy came at a high cost: it
further delegitimised the ICTY in the eyes of the local population by
portraying indicted war criminals as a ‘commodity’ exchanged for EU
integration.

But the ICTY’s lack of legitimacy also owes a great
deal to the controversial performance of the Tribunal which has, in a number of
cases, proved disappointing even for the most ardent supporters of
international justice. One of the most significant early criticisms of the ICTY
came from victims groups in Bosnia and Herzegovina who disapproved of the
Tribunal’s practice of giving light sentences in exchange for guilty pleas.
This was particularly pronounced in the case of Biljana Plavsic, a former
Bosnian Serb leader, who plea bargained with the ICTY and was consequently
sentenced to 11 years in prison. The Tribunal’s reputation was further tarnished
by the poor handling and dramatic ending of the Milosevic trial, leaving both
victims and the general public without a verdict on the role of Serbia’s former
strongman in the Yugoslav conflicts. The failure to complete the ICTY’s most
important case was a serious blow to the Court’s legitimacy.

The ICTY’s performance has been particularly
significant in shaping public attitudes in Serbia. The fact that Vojislav
Seselj, the leader of the nationalist Serbian Radical Party, has now been on
trial for over 9 years seriously undermines the ICTY’s commitment to human
rights and fair process. Whatever one thinks about Seselj and his political
ideas, his right to a trial within a reasonable time limit is being undeniably
violated. The ICTY’s credibility in Serbia was further eroded by the acquittals
of Naser Oric and Ramush Haradinaj in 2008. The Court’s Appeals Chamber found
Naser Oric, the commander of the Bosnian Muslim forces stationed in Srebrenica,
not guilty on the basis that he did not have effective control of those units
who committed war crimes against Serb civilians. Ramush Haradinaj, the former
leader of the Kosovo Liberation Army, was acquitted as a result of the
Prosecution’s inability to secure the most important witnesses, nine of whom
were allegedly assassinated during the trial. In 2010, the Appeals Chamber
ordered a partial retrial of the case but Haradinaj was once again acquitted on 29 November 2012 amid allegations that 19 potential witnesses in the
case had
been killed.

In this context, the acquittal of Gotovina and
Markac by the Appeals Chamber is the last nail in the coffin of the ICTY’s
legitimacy, at least in Serbia. This decision constitutes the most radical
reversal of a judgment in the history of the ICTY. The Appeals Chamber
practically dismissed the entire factual analysis established by the Trial
Chamber. The Trial Chamber established that, in view of the statements issued
by high-ranking Croatian officials prior to the Operation Storm in private and
public, the unlawful attacks carried out by the Croatian military were part of
a master plan to rid Croatia of Serbs. The Appeals Chamber dismissed this line
of thought by challenging the standard used by the Trial Chamber to define
unlawful attacks (a 200 metre range of error). Having reversed the Trial’s
Chamber finding that the attacks carried out by the Croatian military were
unlawful, the Appeals Chamber inferred that there is no evidence of a master
plan to permanently remove the Serbian population from Krajina. This decision
was adopted by a thin majority, with 2 out of 3 judges of the Appeals Chamber
issuing dissenting opinions that will go down in history. To put it straight, Judge
Pocar declared: “I fundamentally dissent from the entire appeal judgment, which
contradicts any sense of justice".

The consequences of junk justice

The underperformance of the ICTY has deep
implications for the prospects for reconciliation in the former Yugoslavia and
for transitional justice in the Balkans and beyond. The decision of the Appeals
Chamber in the Gotovina and Markac case leaves a big void in the understanding
and interpretation of what happened in Krajina in summer 1995. The exoneration
of the Croatian leadership has left open the question of who is responsible for
the forcible removal of, and the war crimes committed against, the Serb
population from Krajina. This outcome reinforces the predominant view in
Croatia that the Serb exodus was orchestrated by the Krajina Serb leadership, who
fled the Croatian military offensive. It consolidates the triumphant narrative
of Operation Storm, celebrated every year as Victory Day and National
Thanksgiving Day, which is an insult to Serb victims and public who see it as
the biggest ethnic cleansing operation since World War II. The Croatian
President acknowledged this state of affairs by declaring that Croatia and Serbia have
different views on history. This is precisely what
the ICTY sought to avoid in order to break the cycle of violence. Indeed,
conflicting memories over World War II provided a fertile ground for the
outbreak of the Yugoslav conflicts in the nineties.

The outcome of the trial of Gotovina and Markac is
a major blow for transitional justice activists in Serbia and Croatia. In both
countries, human rights organisations drew on the findings of the ICTY to
confront their societies with war crimes committed in the nineties in the name
of the Serbian and Croatian national projects. This is no longer possible. In
Serbia, the Tribunal has lost all credibility, even among those who are in
principle supportive of its mission. For the first time, human rights activists
and politicians concur
in their criticism of the ICTY. It will now be very difficult to convince the
Serbian public that Karadzic and Mladic are war criminals on the basis of a
prospective judgment of the ICTY (if they are found guilty). At the same time,
the fact that the Croatian leadership has been cleared of responsibility for
war crimes along with the absence of any other convictions of Croatian
individuals means that the war crimes issue has effectively become a non-issue
in Croatia. As a former anti-war activist from Zagreb puts it: “unfortunately,
this [ruling] solidifies Croatia’s founding myth and everything we (anti-war
activists) did in the nineties becomes treason”. In those circumstances, those
wanting to promote peace and reconciliation in the former Yugoslavia will have
to do so by means other than legal from now on.

At a broader level, this state of affairs
undermines the claim that international tribunals can promote peace and
reconciliation in post-conflict states, which has been a key element of
transitional justice policies over the last two decades. In the nineties, human
rights activists and international lawyers successfully advocated the
establishment of international tribunals by arguing that international war
crimes trials would contribute to peace and reconciliation by deterring
atrocities, individualizing responsibility and producing a historical record
that would impede the denial of past crimes. The ICTY has proved them wrong on
all counts. Instead of healing wounds and closing painful chapters, the
Tribunal has kept the controversies over the Yugoslav wars burning for almost
two decades by now. This calamitous record calls for a reconceptualization of
transitional justice and a re-assessment of international tribunals as tools
for post-conflict reconstruction.

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